WASHINGTON, D.C. - There’s money – legal money -- to be made in marijuana. And while that pleases growers, it also concerns them.
The marijuana business is poised to grow as more states explore legalization. Washington state opened up its first recreational shops Tuesday, and Colorado already has legalized pot. Plus, legal distribution of medical marijuana is now available in numerous localities.
Yet that’s exactly what worries growers who think it’s only a matter of time before big agriculture corporations grab strains that small growers have developed.
The ability to obtain a federal patent for a strain would provide growers with the ultimate legal protection against “big agra.”
There’s just one problem: Marijuana is still illegal at the federal level, and that means growers’ strains are not eligible for federal patents.
“Our concern is that the large corporations in agriculture and big PhRMA will swoop into this industry and take people's work from them,” said Jason Flores-Williams, a lawyer at Blaze America, a pro-marijuana group. That’s the reason Blaze America is conducting its Protect Your Strain Campaign.
The only recourse for cannabis growers at the moment is to apply for a trademark in one of the two states where marijuana has been legalized or in a state that permits medical marijuana. But state-level trademark protection falls short of that provided by a federal patent.
If growers could just get around that little federal legalization problem, it appears they might be able to get some protection. Plants, it turns out, are perfect candidates for a patent by their very nature.
“One of the things with plants is they self-replicate. So when you do sell them, it can easily be made into a copy. So you need a tool like a patent if you want control,” said David Marsh, co-head of the Intellectual Property unit for law firm Arnold Porter. “It’s your right to stop people from taking what you developed as long as it fits the criteria for a patent.”
To get a patent, a grower would have to provide specific chemical evidence of a unique strain, and then when the grower sells the strain under a particular name, buyers would know exactly what they are getting.
That means granting patents would not only be a win for growers but for customers, too, Flores-Williams said.
Right now, strains marketed under the same name, such as “Sour Diesel,” actually vary widely depending where customers buy their pot.
Flores-Williams believes the marijuana industry is at a legal tipping point. Like many other hot-button social issues, the ability to profit legally from marijuana sales may ultimately be decided by the courts.
“People who are engaged in the market right now simply need to apply for patents and when they are denied, to litigate those issues,” he said. “They need to go about their business with the assumption that marijuana is going to be a multimillion dollar industry--everything else is moving forward.”